323: Emolument Enrichment

[00:00:03]Welcome to this episode of >> [music] >> Sisters Sidebar with Jill Winebanks and me, Barb McQuade. If you have a question [music] for us, please email us at [email protected] or tag us on social media using [music] #sistersinlaw.

[00:00:19]But, don't just type them. Your voices are so important, which is why we want to hear them, too. Email us a voice memo using one of your notes apps, >> [music] >> and we might play it on the show.

[00:00:32]Well, let's get started.

[00:00:34]Here's a question for you, Jill, and it comes from Donna.

[00:00:38]>> Good morning, sisters.

[00:00:40]This is Donna from North Carolina. I love your shows.

[00:00:45]What are your thoughts about the situation with Qatar's free plane to the president?

[00:00:52]Was it given to him rather than the United States since Congress did not approve the gift?

[00:01:00]>> [snorts] >> If it is his takes it with him when he leaves office, shouldn't he be responsible for any funds that were used for the plane outfitting, staffing, fuel, etc.?

[00:01:16]If it was given to the United States, the president would have no right to take it with him upon leaving office, in my opinion.

[00:01:26]>> In addition to this audio question, there is a written question that I will also answer because I thought it was very related, and that one came from @johnmalpنیز.bluesky.social and Jason. What constitutes an Emoluments Clause violation?

[00:01:43]Okay, so that's a great question. Um the Qatari plane is to me a major issue, um and only Congress or the Department of Justice seems to be able to enforce the US Constitution's Emoluments Clause.

[00:02:01]Some private citizens have tried, but have failed. They've been dismissed for lack of standing. Um the enforcement should come from Congress. The US Constitution explicitly grants Congress the authority uh to consent to any foreign gift, certainly a gift of this magnitude, and a gift that cost taxpayers billions because it needed to be retrofitted. Um is one that he should not be able to take with him when he leaves office as the plan currently exists. The Department of Justice could also take action, but of course they're totally under Donald Trump's control, so they will not. The federal courts could, if a proper plaintiff came before them. Legal experts and advocacy groups um such as the Brennan Center, which is a really good group, the Brennan Center for Justice, argue that formal congressional codification is required to give the clause any meaning to make it have any statutory teeth. So that's I think the only way we can do it is to have a law passed to enforce the Emoluments Clause.

[00:03:12]Barb, here's a great question for you from K in New York City. The Me Too movement has bothered me as I think it trips over due process. Would love to hear your thoughts.

[00:03:24]>> Yeah, this is such a great question. Um the tension between believing um survivors and victims of sexual assault or sexual harassment and the due process that we afford to everybody who is criminally charged with a crime. Um I do not think that those two thoughts are irreconcilable because I think what we mean when we say believe women, it is to take them seriously when they make a complaint because for too long, centuries, but not just in olden times, to this day, often times when women report to the police that they have been a victim of sexual assault, the police don't believe them. They say, "Did you just break up with your boyfriend, honey? Are you trying to get back at him? Um are you sure you didn't lead him on? What were you wearing?" You know, these really demeaning kinds of things that no one would ever say to someone who came in to report that their house had been burglarized or that they'd been robbed at gunpoint. Nobody would ask what you were wearing.

[00:04:29]Um or whether you'd just broken up with your boyfriend. So, that's what I think we mean by um uh believing women is taking seriously their allegations of harm. Um it doesn't mean that that person does not get due process. Um and then there are other things, you know, when you are the process that is due depends on the situation. If you are um being criminally prosecuted, there are certain things that you get like you get witness statements. You have a constitutional right to confront witnesses against you.

[00:05:02]You have a right to um all derogatory information about your about the case.

[00:05:08]So, anything that might be exculpatory about the defendant, you have a right to all those things. That's due process in a criminal case. In a civil case, due process doesn't necessarily look like that. In a workplace setting or in an academic setting, it doesn't necessarily work like that. You still get due process, but what process is due depends on what um uh liberty interest might be taken from you. Essentially, what you get is fair notice, an opportunity to be heard by a impartial arbiter. And so, absolutely, people who are accused of being assailants in sexual assault are entitled to due process, but we just ask that at the outset, we take seriously and show respect to the complainant, just as we would in every other kind of a case.

[00:05:53]Um, Jill, here's a question for you.

[00:05:55]This comes from Catherine. Dear sisters, this is Catherine from Bloomington, Illinois, and I have a question about voter's registration. In the last recording, you had mentioned that the federal government had raided a group in Ohio whose purpose was to register people to vote. I'm old enough to recall the whole ACORN fiasco. I am a member of our local League of Women Voters, and I've been asked to try to register people to vote at certain events. Are they going to go after the League of Women Voters next? Thank you. Thank you, Catherine from Illinois. Um, first of all, thank you for reminding me about ACORN. I actually had to think about what that was when you mentioned it. And of course, for those listening, ACORN was a conservative group of undercover I don't know what the right demeaning word is, undercover operatives, um, got recordings of different more progressive groups and used them to uh to hurt their credibility. Uh, and in one case, in the case of ACORN, to actually end up destroying ACORN.

[00:07:06]Uh, so that's a good thing to to do. Um, and this relates to um a question about the League of Women Voters uh that we talked about in our most recent Sisters in Law episode. And I have since spoken to Jane Ruby, who is the president of the League of Women Voters in Chicago, um, and who's an amazing leader of that group. And I asked her what she thought, and she wrote back to me, and I just want to say what what Jane said, which I'm going to read. For more than 100 years, the League of Women Voters has fought to defend and expand the rights and liberties of all people across our country. Our steadfast commitment to non-partisanship has often brought the League under fire, but it has also allowed us to serve as a moral compass grounded not in party allegiance, but in what is equal or unequal, just or unjust, and equitable or inequitable. We are increasingly seeing the League singled out and falsely characterized as partisan simply because we register voters, defend voting rights, and work to ensure access to the ballot box. But, helping eligible citizens participate in their democracy is not a partisan act.

[00:08:22]It is one of the most fundamentally American endeavors.

[00:08:26]I cannot, and this is Jane speaking, I cannot predict whether raids or other forms of government intimidation directed at voter registration organizations will extend to the League.

[00:08:36]The League has weathered many storms.

[00:08:39]However, and our century-plus history, institutional credibility, and uncompromising commitment to lawful, non-partisan civic engagement make us less susceptible to overt government overreach.

[00:08:53]But, we are not complacent. The League is prepared to address any threat to our organization, our members, or our mission. Ensuring that the League remains strong and able to carry out this work will forward um for the next 100 years is paramount. We will not be intimidated out of defending democracy.

[00:09:12]So, I hope that Jane has really answered your question. There is no predicting what this administration will do to stop voter registration.

[00:09:21]Um but, it is important that the groups that do that remain steadfast in their commitment to democracy and are not intimidated.

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[00:15:07]>> [music] >> So, Barb, here's a question for you from Don.

[00:15:14]>> Hi, my name is Don from Chesterfield, Missouri, a suburb of St. Louis.

[00:15:20]My question is related to how we refer to judges and who appointed them and that we never used to do that.

[00:15:29]I would think that we could probably stop doing that for any federal judges other than the Supreme Court that were nominated before November of 2013 when they took away the filibuster and Supreme Court judges before Trump when they did it in April of 2017 for them because prior to those filibuster removals the moderation of the judge was required in order to pass that filibuster test.

[00:16:06]Now we get ideologues more so. So, what do you think about that?

[00:16:12]>> Yeah, you know, Don, that's really interesting question. I was just talking with somebody last night about the filibuster and the value that it can add, um, but also the harms that the filibuster can create. So, for people who don't know, you know, the filibuster is this idea that, uh, senators can get up and talk and talk and talk and talk as long as they want and it takes 60 votes to end the filibuster to vote. So, in essence, it requires 60 votes to approve the matter that's on the table, uh, because otherwise the person can just filibuster away, uh, forever. And so, it used to be that these were done with, uh, judicial nominations as well.

[00:16:54]And during the Obama administration, it was the Democratic-controlled Senate that did away with it. They just voted within the Senate to remove it because they thought it was becoming too difficult to get Obama nominees approved. And then, um, the Senate, uh, during Trump's first administration, when the Senate was controlled by Republicans, it it used to be called the nuclear option. They got rid of it for Supreme Court justices. And so now you're right, and I hadn't thought about this, but what it means is that um nominees can get confirmed with only 51 votes in the Senate. And so if one party or the other controls the Senate, you could have a more extreme candidate getting through because you don't need um the other party very often to cross party lines and vote in favor of that person if you only need 51 votes. And so I I I do believe Remember Remember what happened to Robert Bork? He got, you know, the verb was created that he got Borked. He was certainly qualified in terms of his experience and his work. He was, you know, brilliant, but he was ultra-conservative. And so there were uh Democrats in the Senate who thought he would be just too extreme to be on the court. So he was rejected. And, you know, then we got Justice Souter, who nobody knew anything about. He had been a state court um justice in New Hampshire. And that became kind of the norm to be as neutral as possible. Don't say anything too extreme if you ever want to be on the court. And now it seems that it is those people who are auditioning almost for a seat on the court by saying some really outrageous things. You know, if you want to be on the court, you have to refer to abortion as abortion on demand. You know, that's one of the the the hot terms. And I'm sure there similar tendencies on the left trying to demonstrate your progressive bona fides. So, um you know, there are trade-offs. But I suppose you're right that if we want more moderate viewpoints on the court, perhaps restoring the filibuster is a way to uh to get that sort of moderation back.

[00:18:58]Here's one for you, Jill. It comes from Leslie, and she asks, "Will trust in the rule of law return after Trump?" How long do you think it will take, and how can we speed it up?

[00:19:08]Well, Leslie, that is a question that probably has no factual answer, just speculation. And I want to invite all of our listeners and watchers, cuz we're now on YouTube, to please text us or email us or put something on our social media that lets us know how you feel we can speed the process up. Because you're right, trust in the rule of law is at a low ebb and for legitimate reasons.

[00:19:42]Uh we've seen prosecutions that should never have happened. We've seen grand juries refuse to indict because there's no facts. We've seen juries reject cases.

[00:19:52]Um so we need to do something, but the only thing that I honestly can think of is that we need to elect a Democratic House and Senate and a Democratic President. And we have to go back to the rules, you know, Barb, you and I worked in a Department of Justice that prosecuted without fear or favor. We did not take directions from the White House.

[00:20:16]We did what the facts and the law required. And we need to go back to that. How long it will take for people to see that that's what's happening and to trust again, I don't know, but I think I can point to what happened after Watergate where trust was really demolished and Edward Levi became the Attorney General and he really focused on rebuilding faith in the Department of Justice and doing things the right way. And he very quickly turned things around. Now that was after only, you know, four years, not even four years. Watergate happened and three years later the President was out.

[00:21:02]Um so I think that this is going to take a little longer because of the length of time that we've been undergoing this and because it's worse in the second administration.

[00:21:13]But it is doable. I really believe that and I'd love to hear from everybody about what you think is possible.

[00:21:19]>> Well, Jill, it gives me hope to hear that from you because if anybody has sort of seen the uh the low point of DOJ trust, it's you after Watergate. And so um that restoration that time was very important. So maybe that gives us a little hope that it can happen again.

[00:21:35]>> Barb, we're running out of time, but we have time for one more question and it comes from Cindy for you.

[00:21:41]And Cindy asks, what's the difference between civil contempt and criminal contempt?

[00:21:47]>> Great question, Cindy. Um they are two different things. So civil contempt is what we see um when someone, say a witness, refuses to comply with a subpoena and a judge says they're going to hold them in contempt.

[00:22:03]That is to be an inducement. So sometimes we've seen it with reporters or other people who say I refuse to testify pursuant to the subpoena.

[00:22:12]They'll say, "I'm going to lock you up until you agree to comply with this subpoena because you don't have any valid defense against it." Under federal law, the statute says you can't hold someone for more than 18 months, but I think the idea is if you refuse to comply with a court order, you can be jailed until you do comply with that court order. This is something I'd like to see I talk about this in my book, The Fix. I would like to see the US Marshals Service moved over to um the judiciary so that if the executive branch refuses to comply with a court order, the judge could order the marshals to lock them up um using its civil contempt powers. So that's civil contempt, locking somebody up unless and until they comply with a court order up to 18 months. Criminal contempt is punishment. So somebody fails to comply.

[00:23:04]We saw this with Steve Bannon and Peter Navarro in the Trump administration.

[00:23:07]Failure to comply with a subpoena, a judge may not say, you know, they may say, "We don't think this person's ever going to comply, and that it would be futile to lock them up. They'll just stay there for 18 months, and they're never going to comply with this." And so, then what the judge might do is allow Sometimes they refer the prosecutors to prosecute the case for criminal contempt. This requires either that the Justice Department or a state equivalent to file criminal charges that this person got this order, they failed to comply, therefore they were in criminal contempt, the judge found them in criminal contempt, and we're going to prosecute them like any other crime. Um there are few instances where the Justice Department has declined to prosecute, and the court has appointed its own counsel to handle that prosecution, but when a person is convicted of criminal contempt, they can then be sentenced to prison time, not to induce them to comply with the order, but to punish them for failing to do so.

[00:24:05]So, that's the difference between civil and criminal contempt.

[00:24:09]>> Thank you for listening >> [music] >> to #sistersidebar with Barb McQuade and me, Jill Wine Banks.

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[00:24:58]Don't forget you can also get merchandise from politicon.com/merch [music] and we look forward to seeing you every week on [music] Wednesdays for sisters side bar and on Saturdays for #sistersinlaw. [music] >> You know Jill, when our daughter was little her older brothers taught her to show different baseball grips and she would say they taught her to say this fastball curveball meatball >> [laughter]